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Second Circuit: Trump Can't Block Twitter Foes

Group of friends in the street with smartphones
By Christopher Coble, Esq. on July 11, 2019 8:54 AM

Few people, fewer famous people, and even fewer United States presidents tweet like Donald Trump. And while his output may be limitless, the president has limited the input to his Twitter account in the form of blocking certain users from commenting on his tweets. The only problem, legally speaking, is that these blocks also prevent users from seeing his tweets as well. And that, according to the Second Circuit, is unconstitutional.

"[T]he President excluded the Individual Plaintiffs from government-controlled property when he used the blocking function of the Account to exclude disfavored voices," reasoned Judge Barrington Parker Jr., writing for the unanimous court. "Once it is established that the President is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment."

Fighting Speech With Speech

Barrington acknowledged the "uncomfortable and ... unpleasant" debate occurring between citizens and politicians on Twitter, debate that "encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen." But blocking is not the answer.

"In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less."

The Second Circuit also distinguished the President's @realDonaldTrump account from a "wholly private social media account": "Because the president, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him."

Playing Politics

While some may view the court decision as a political victory against a president they don't like, it didn't take long for former New York Assemblyman Dov Hikind to pounce on the ruling and file a lawsuit against Representative Alexandra Ocasio-Cortez for blocking him on Twitter. "AOC uses Twitter to make formal announcements, opine on a range of social matters both domestic and abroad, endorse candidates, engage with follows of her account, promote Defendant's agenda, and other matters," according to the complaint, proving what's good for the conservative goose is good for the liberal gander.

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